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NAIS Update, Fall 2009

GROWING OPPOISTION TO THE NATIONAL ANIMAL IDENTIFICATION SYSTEM

The National Animal Identification System (NAIS) is a plan to require anyone who owns even one livestock or poultry animal—even just a single chicken or a pet horse—to register their property, tag each animal (in most cases with electronic identification, such as microchips or RFID tags), and report their movements to the government within twenty-four hours. Grassroots activists and organizations have been working diligently for years to stop this program before it drives our sustainable livestock farms out of business. The outcry that began in 2005, when the government plans were released, has gained significant momentum in the last year, as a broad coalition forms at the federal level and individuals across the country step forward.

The Action in Congress

To date, Congress has provided over $124 million of federal funding—our tax dollars—for USDA’s implementation of NAIS. Early in the fight to stop this program, anti-NAIS activists identified stopping the funding as an important tool. The first battle over this issue occurred back in May 2006, when Congressman Ron Paul (R-TX) introduced an amendment to the Appropriations bill to halt all funding. That amendment failed by an overwhelming vote (34 to 389), but it created the first focal point for educating Congress about what NAIS really is and why we are opposed to it.

We’ve come a long way in the three years since that first vote. In July, the House of Representatives passed the 2010 Agriculture Appropriations bill with no funding for NAIS. Although this was an important step, the commentary behind the funding cut raised a red flag. The Chairs of both the Agriculture Appropriations Subcommittee and the full Appropriations Committee, Representatives DeLauro (D-CT) and Obey (D-WI), are long-time supporters of a mandatory NAIS. The bill summary stated: “Until USDA finishes its listening sessions and provides details as to how it will implement an effective ID system, continued investments into the current NAIS are unwarranted.” The term “effective NAIS” was used in Congressional hearings in the spring as essentially another word for a mandatory or coercive NAIS that forces most people to participate. In other words, part of the motivation behind cutting funding was to create the choice between no NAIS and a mandatory NAIS, and it was done by those who support a mandatory NAIS.

The anti-NAIS movement quickly pressed for the “No NAIS” option. The Farm and Ranch Freedom Alliance (FARFA) coordinated a letter to the House and Senate urging that funding for NAIS be stopped. In addition to the Weston A Price Foundation and Farm-to-Consumer Legal Defense Fund, over eighty other organizations signed the letter. These groups spanned the full political and geographic spectrum, representing organic farmers, conventional ranchers, property rights activists and concerned consumers. A coalition that broad is rare in DC and key to getting Congress’ attention.

The House of Representatives adopted the Committee’s proposal for no funding for NAIS. However, the Senate Committee on Appropriations included $14 million in funding for the program. Senator Tester (D-MT) gave an excellent speech during the hearing, excerpted below:

“. . . A few weeks ago the House chose not to fund Animal ID for FY10 and I think that was the right decision. I believe this committee and the Senate should follow suit. I have always had concerns about the merits of this program as the best tool for disease tracking and prevention. I believe there are cheaper and more effective tools that USDA has failed to utilize. . .

“I’ve also been troubled that some of the public confuses Animal ID with food safety rather than the livestock disease tracking program that it was meant to be. Food safety improvements at packing plants are critically important, but implementing Animal ID will do nothing to improve food safety at packing plants. Nothing.

“Animal ID simply isn’t working.”

As the Senate Committee version headed for the floor, Senator Tester submitted an amendment to cut the funding in half. The coalition of organizations alerted their members and called for support for the Tester Amendment, which ultimately passed by unanimous consent. Note that this does not mean that every Senator agreed with the amendment. Adopting a provision by unanimous consent is sometimes done when there is a majority in favor of the provision, and the Senators don’t wish to have their individual votes recorded. The final result, though, is what matters: the Senate cut funding for NAIS to just over $7 million.

The next step is a conference committee to reconcile the House and Senate versions of the Agriculture Appropriations Bill. The committee is expected to be named in early September, when Congress returns from its summer recess. Once the members are named, we will need to mount a grassroots campaign again, so please watch for action alerts in your email. If you do not have internet access, consider creating a phone tree that can be “activated” by someone who does have email access. We need everyone’s voice in this fight!

Farm-to-Consumer Legal Defense Fund ’s Lawsuit to Stop NAIS

Unfortunately, while the battle in Congress is gaining steam, the battle in the courts has hit a significant barrier. Last fall, the Farm-to- Consumer Legal Defense Fund brought the first, and so far only, lawsuit that sought to halt the program. The Fund sued both USDA and the Michigan Department of Agriculture (MDA) in federal court, alleging violations of multiple federal and state laws and the Constitution. The Fund alleged that MDA had implemented the first two stages of NAIS (premises registration and electronic identification) on all cattle in Michigan due to coercion from the USDA, so that both agencies were legally responsible. The Fund’s suit asked the court to issue an injunction to stop the implementation of NAIS at both the state and federal levels by any state or federal agency.

MDA and USDA filed motions to dismiss the lawsuit, essentially claiming that MDA had independently chosen to require premises registration and electronic tagging, and was not really implementing NAIS at the USDA’s direction. In July, the D.C. District Court granted the government’s motions and dismissed the case. The Court stated that “NAIS is voluntary at the federal level,” so the agencies did not have to comply with the federal laws that provide protection for small businesses, the environment and individuals.

The Fund filed a motion for rehearing on August 6, noting in part: “Specifically, the Court failed to recognize the facts that relate to Plaintiffs’ allegations that MDA’s alleged ‘state actions’ were taken at the direction of, and as a surrogate for, federal action by USDA. The evidence contained in the administrative record and in the exhibits attached to papers filed with the Court demonstrates that USDA took key steps to implement its allegedly ‘voluntary’ National Animal Identification System (NAIS) as a mandatory program through its interactions with MDA. Plaintiffs alleged that it was USDA’s actions that directly influenced the decision and actions of MDA, the state regulatory agency.”

As this article goes to press, the parties are in the middle of the briefing process, and we cannot predict when the Court will rule.

USDA Listening Sessions

The last issue of Wise Traditions included an update on the first five listening sessions held by USDA on NAIS. In the end, USDA held a total of fourteen sessions around the country. USDA billed these meetings as an opportunity to get public input into how to develop a workable NAIS system that people would accept. But the meetings quickly showed that few people have any interest in that! Instead, the clear message was “Stop NAIS.” In total, approximately seventeen hundred people attended the sessions. Of those who spoke on the record, over 90 percent opposed a mandatory NAIS. The USDA also accepted written comments, and thousands more people sent in comments opposing NAIS.

Conclusion

The future of NAIS is unclear at this moment. Will USDA pay attention to the overwhelming opposition to NAIS? Will Congress end the funding for the program? Or will the legislators and agency ignore the will of the people and push through an “effective” NAIS? And if the government drops the pretense of a “voluntary NAIS,” what will the courts do? The fight is far from over. Yet we have made significant progress. The USDA’s original plan called for the entire three-step NAIS program to be mandatory nationwide by January 2009, a plan that has been seriously derailed and continues to flounder. We must keep on educating our neighbors and communities, and speaking out against this program, to protect the sustainable livestock farms that produce the nutrient-dense foods so critical to people’s health.

This article appeared in Wise Traditions in Food, Farming and the Healing Arts, the quarterly journal of the Weston A. Price Foundation, Fall 2009.

About Judith McGeary

Judith McGeary is the WAPF chapter leader for Austin, Texas, and is also an attorney and small farmer. She has a B.S. in Biology from Stanford University and a law degree from the University of Texas. After a clerkship with the Fifth Circuit Court of Appeals, she practiced as an attorney in administrative law, litigation and appeals. She left her legal practice to form the Farm and Ranch Freedom Alliance (FARFA), a nonprofit organization dedicated to lobbying on behalf of independent agriculture, representing both farmers and consumers. She and her husband live on a sustainable, pasture-based farm outside of Austin, with heritage poultry, sheep, cattle and horses. For more information, go to www.farmandranchfreedom.org or call 1-866-687-6452.